- Publication date:
- Nbr. 33-4, December 2020
- Nbr. 33-3, September 2020
- Nbr. 33-2, June 2020
- Nbr. 33-1, March 2020
- Nbr. 32-4, December 2019
- Nbr. 32-3, September 2019
- Nbr. 32-2, June 2019
- Nbr. 32-1, March 2019
- Nbr. 31-4, December 2018
- Nbr. 31-3, September 2018
- Nbr. 31-2, June 2018
- Nbr. 31-1, March 2018
- Nbr. 30-4, December 2017
- Nbr. 30-3, September 2017
- Nbr. 30-2, June 2017
- Nbr. 30-1, March 2017
- Nbr. 29-4, December 2016
- Nbr. 29-3, September 2016
- Nbr. 29-2, June 2016
- Nbr. 29-1, March 2016
- Issue Information
- In Concreto Antinomies, Predictability, and Lawmaking
This paper investigates whether or not cases of in concreto antinomies (ICAs for short, also called indirect antinomies, accidental antinomies, normative conflicts due to the facts, predicaments, or paranomies) can be predicted. I distinguish two main theoretical positions: “Prodetection” argues that we can predict in concreto antinomies; “unpredictability” argues that we cannot predict them. I exemplify the two positions by relying on a disagreement found in the literature; then, after reviewing that disagreement, I (i) provide arguments for both positions; (ii) highlight the problematic issues for a definition of in concreto antinomy based on conceptual independence; (iii) point out some problems in Martínez Zorrilla’s threefold conception of normative conflicts; and (iv) advocate the need to introduce a case for “practically unpredictable” normative conflicts.
- Issue Information
- Index to Volume 33 (2020)
- Political Representation as Interpretation: A Contribution to Deliberative Constitutionalism
This article analogises political representation to legal interpretation. It then applies the analogy to the hitherto neglected question of what political representation means for deliberative constitutionalism. The upshot is a conception of deliberative constitutionalism that, while uncompromisingly grounded in the reasoned expression of the preferences of a polity's constituents through deliberative democratic institutional innovations, mandates representatives to translate those preferences into general and abstract constitutional law. It thus enhances the deliberative contribution of citizens in the determination of constitutional meaning, while preserving the value of representative institutions.
- Moral Failure and the Law
The recent “Windrush” scandal in the United Kingdom involved the application of law by Home Office officials in a manner that demonstrated gross lack of concern and humanity for its impact on many individuals. In an endeavour to reach some understanding of how ordinary individuals could have inflicted such hardships on others, this article considers the possible effect that acting within a legal environment might have on the actors’ response to moral norms. The inquiry leads to reconsideration of established theories on the relationship between law and morality, concluding that the main theories ignore important aspects of that relationship.
- Integrative Jurisprudence: Legal Scholarship and the Triadic Nature of Law
What is the core of legal scholarship? How can we understand its relation to other disciplines, such as moral and political philosophy, sociology, and economics? I explore these questions by analysing the impact of the dual nature thesis. Criticising established theories of legal scholarship, I defend the ideal of an integrative jurisprudence. Integrative jurisprudence combines the two dimensions of law by employing analytical, empirical, and normative methods. I then discuss three objections and address the problem of how to bridge is and ought. In the course of my analysis of three different bridge theories, I ultimately further develop the dual nature thesis into a triadic nature thesis.
- Fair Play, Reciprocity, and Natural Duties of Justice
In this paper, I respond to what is currently the most significant criticism of the principle fair play as a basis for political obligations. In a series of cases in which obligations appear to be established by fair play, important scholars contend that the moral principle at work is not fair play but a natural duty of justice to provide essential benefits to other people. Such natural duty accounts strikingly ignore requirements of reciprocity, to make appropriate return for benefits received. In addition, careful examination of possible natural duty explanations of such cases indicates severe difficulties explaining exactly to whom the natural duties in question are owed and why they may require significant costs.
- The Irrelevance of History: In Defense of a Pure Functionalist Theory of Territorial Jurisdiction
This article defends a pure functionalist theory of territorial jurisdiction according to which a state’s moral right to rule over a territory rests on its present moral performance as a freedom‐enabling institutional structure. A common objection against functionalist theories is that they cannot explain why it matters that one particular state has exclusive jurisdiction over a certain territory. This deficiency is often associated with the annexation challenge, which is supposed to show that functionalist theories cannot deal adequately with cases of annexation. Against this line of criticism, I argue that the pure functionalist justification of the right to rule is capable of tackling challenges related to particularity and annexation. First, the pure functionalist theory explains why it is important that one particular state rules over a given territory. It also tells us what set of laws and what government we should comply with. Second, the pure functionalist justification of the right to rule entails sufficient conceptual resources to account for the wrongdoing involved in annexation. Although the theory deems past wrongs irrelevant for the justification of the right to exercise jurisdiction on a territory, it is adequately sensitive to historical injustice.
- The Claim to Correctness, Rights, and the Ideal Dimension of Law: A Short Reply
These are the answers I gave to Brian Bix, Peter Koller, Ralf Posher, Torben Spaak, Timothy Endicott, and Jan Sieckmann at the end of a splendid conference day in 2018. The critique given to me concerned important aspects of three main themes in my work: the claim to correctness, human and constitutional rights, and the ideal dimension of law. In the last decades I have attempted to connect these themes systematically. The result is the idea of democratic constitutionalism as an institutionalization of practical reason.
- The “Discourse” of International Law and Humanitarian Intervention
This essay analyzes the doctrine of “humanitarian intervention” in the frame of international law in the second half of nineteenth century and identifies the ground of legitimation of this intervention in the violation of presumed universal laws of humanity. The analysis emphasizes the...
- Legality and the Legal Relation
According to Immanuel Kant, legality means the quality of an action being merely and simply in conformity with a law. The article defends the significance of this notion and explains how it indicates the existence of a legal relation. The legal relation, in turn, is the result of resolving an...
- The Senility of Group Solidarity and Contemporary Multiculturalism: A Word of Warning from a Medieval Arabic Thinker
This paper discusses the thought of the medieval Maghrebin thinker Ibn Khaldun through the prism of the philosophy and sociology of law and politics. I will first try to illustrate how, even if Ibn Khaldun wrote in the fourteenth century, he anticipated many core concepts that are characteristic of ...
- Schauer's Anti‐Essentialism
In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties (a position he calls legal anti‐essentialism), and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that ...
- Liberal Legitimacy and the Question of Respect
In a modern pluralist society, the idea of liberal legitimacy as proposed by John Rawls offers a promising foundation for the further historic advancement of democracy. However, liberal legitimacy still seems to lack one key element—a unique type of respect at its foundations—without which such...
- The Force of Norms? The Internal Point of View in Light of Experimental Economics
Setting aside its conceptual issues, it remains an open question whether the internal point of view is a good descriptive tool for the behaviour of ordinary citizens or if a sanction‐based explanation of legal compliance is sufficient. This paper will discuss strains of experimental literature...
- A Pragmatic Reconstruction of Law’s Claim to Authority
Raz holds that necessarily all legal authorities, even de facto authorities, make a claim to legitimate authority. He does not say that legitimacy is a necessary property of law. This view, which I call the claim view, constitutes my focal point in this paper. Many commentators have criticized this ...
- The Common Core between Human Rights Law and International Criminal Law: A Structural Account
Legal scholars and theorists have recently drawn a more sustained attention to the link between international human rights law (hereafter IHRL) and international criminal law (hereafter ICL). This concerns both positive and more normative accounts of the link. Whether positive or normative, the...
- The Ambiguity of Force
The author argues that Schauer's understanding of appropriate empiricism and relatedly what he wishes to take from the positivist classics might have an even more reductive impact on legal philosophical inquiry than the legal positivist quest (which Schauer rejects) to confine such inquiry to a...
- The Inner Logic of Exclusivism (and Inclusivism): Shapiro's Shadowing
Scott Shapiro, a prominent defender of exclusive legal positivism—exclusivism—has intriguingly (re)introduced a logical principle, the endorsement and rejection of which he (I take it) supposes can helpfully distinguish exclusivism from its contrary, inclusive legal positivism—inclusivism. It is an ...